The Defense Rests

Law firm drops case defending the Defense of Marriage Act, but one of its partners resigns to continue as counsel

The law firm the U.S. House of Representatives hired to defend the Defense of Marriage Act (DOMA) in court dropped the case Monday after coming under pressure from gay rights groups.

Robert Hays Jr., chairman of King & Spalding, said in a statement that the law firm withdrew from the case because it had not done enough “vetting” before taking the case, and he apologized “for the challenges this may have created.”

Immediately, a prominent partner at the firm and the lawyer assigned to the case, Paul Clement, solicitor general under President George W. Bush, resigned from the firm. Clement plans to continue as counsel to the House on the case, now with a new, smaller firm—Bancroft PLLC, founded by a former member of the Bush Justice Department, Viet Dinh.

“To be clear, I take this step not because of strongly held views about this statute,” Clement wrote in his resignation letter. “Instead, I resign out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. . . . Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.”

Theodore Olson, also a Bush solicitor general, agreed to take a case on the opposite side of the issue, challenging California’s Proposition 8, which defines marriage as between a man and a woman. But he commended Clement’s decision and told The Washingtonian, “It’s important for lawyers to be willing to represent unpopular and controversial clients and causes.” The Los Angeles Times editorial board, which calls DOMA a “discriminatory law,” penned an editorial criticizing the Human Rights Campaign’s attack on the firm, echoing Olson: “The tradition of lawyers defending unpopular or controversial clients is an honorable one.”

DOMA, which Congress passed in 1996 and President Bill Clinton signed into law, defines marriage as between one man and one woman and bars federal benefits for same-sex couples. The law faces a number of court challenges. Previously the U.S. Justice Department had defended it as established law, despite President Barack Obama’s personal opposition, but in February Attorney General Eric Holder and the president announced that they no longer deemed the law constitutional and the Justice Department would no longer defend it in court. A number of lawyers said the administration’s defense of the law was half-hearted to begin with.

Congress, which passed the law, is likely the only other entity that has standing in court to defend the law, so the House convened a rare legal advisory group in March that contracted with a law firm to defend the statute. House Democratic leaders objected to the decision. Once the firm agreed to take the case in April, gay rights groups began to exert pressure. Human Rights Campaign and Georgia Equality had planned a protest Tuesday morning outside the firm’s Atlanta offices, and the two groups planned to buy ads attacking the firm. Several gay rights legal groups publicly condemned the firm before it withdrew from the case.

Brendan Buck, a spokesman for House Speaker John Boehner, said the speaker was disappointed in the firm’s “careless disregard for its responsibilities to the House,” but praised Clement’s “legal integrity.” Buck said in a statement, “This move will ensure the constitutionality of this law is appropriately determined by the courts, rather than by the president unilaterally.”